Citation Nr: 21075016 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-45 164 DATE: December 17, 2021 REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from May 1986 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) from a November 2016 rating decision. The Veteran testified before the Board at a hearing in June 2021. A transcript of the hearing has been associated with the claims file. In a September 2021 decision, the Board remanded the issue of entitlement to a TDIU to obtain additional VA treatment records, which were associated with the claims file in September 2021. Presently, the Board finds that further development is necessary regarding the claim of entitlement to a TDIU. Throughout the period on appeal, the Veteran's service-connected disabilities included a migraine headache disability rated at 50 percent, tinnitus rated at 10 percent, and bilateral hearing loss with a noncompensable rating. The combined disability rating throughout the period on appeal is 60 percent. As such, the Veteran does not qualify for a schedular TDIU. 38 C.F.R. § 4.16(a). If a Veteran fails to meet the applicable percentage standards provided in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). If the Board finds that a Veteran is unemployable by reason of his service-connected disabilities but fails to meet the threshold requirements for a schedular TDIU, the matter should be submitted to the Director of the Compensation Service for consideration of a TDIU on an extraschedular basis. The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Given the low standard for referral set forth in Ray, the Board finds that the evidence reflects that the Veteran has met this standard. See also Snider v. McDonough, No. 19-6707, Nov. 19, 2021. In August 2017, the Veteran submitted a statement from one of his treating VA medical providers. The medical provider stated that she had worked with the Veteran since December 2015, was familiar with his medical history, and had observed his debilitating migraine headache episodes. The medical provider opined that the Veteran's migraine headache disability alone would render him unable to maintain employment given the frequency, severity, lack of predictability, and lack of warning signs of his migraine headache episodes. In August 2017, the Veteran submitted a statement from his treating VA neurologist. The neurologist opined that during the Veteran's acute phase of experiencing chronic daily migraines and at an early phase of medical treatment, his migraine headaches alone could cause unemployability due to difficulty with day-to-day activities and concentration. The neurologist further stated that this phase could be temporary and improved with optimization of medical regimen. Regarding the Veteran's VA treatment records, in October 2016, he reported daily headaches with no photosensitivity, nausea, or vomiting. His migraine headache episodes were also documented as severe headaches with photophobia, phonophobia, and nausea and as lasting for half of a day to two days. In November 2017 and August 2018, he reported continued daily headaches with no photosensitivity, nausea, or vomiting as well as continued flare-ups of migraine headache episodes. In November 2019 and May 2020, he reported that his migraine headaches had lessened with episodes occurring once every two weeks or less. The December 2020 VA treatment records indicate a significant worsening of migraine headache episodes as the Veteran reported that his migraines increased like a tsunami with at least 4 episodes occurring per week. In January 2021 and February 2021, he reported experiencing four to five migraine headache episodes per week. In April 2021, June 2021, July 2021, and September 2021, the Veteran complained of nearly constant migraine headache episodes causing him to be unable to function and necessitating multiple medication changes without symptom improvement. The Board finds that the opinion from the Veteran's treating VA medical provider indicates that his migraine headache disability alone may cause unemployability; that the opinion from the treating VA neurologist indicates that during an acute phase his migraine headache disability alone may cause unemployability; and, that that VA treatment records indicate that he has experienced acute phases with a severe phase lasting from approximately December 2020 to the present, which may cause unemployability. Therefore, the Board finds that the probative evidence of record indicates that it is a reasonable possibility that the Veteran is unable to obtain and retain substantially gainful employment due to his service-connected migraine headache disability, and a referral to the Director of the Compensation Service for consideration of a TDIU on an extraschedular basis is warranted. The matters are REMANDED for the following action: (Continued on the next page) 1. Refer the matter of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) to the Director of the Compensation Service and notify the Veteran of such action. 2. After conducting any additional development deemed necessary, re-adjudicate the claim. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.